The AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A workers and workers in corresponding employment for a particular agricultural job and area.

OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So – The OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.

Rankings, awards, annual spring seminar, upcoming and recent speaking engagements, publications, and what you may have missed.

1. Is Immigration Reform Possible in 2014?

U.S. House of Representatives Speaker John Boehner reportedly hopes to push immigration reform legislation forward in 2014, a year in which midterm elections will take place in November. He faces competing pressures: on one side are those advising that immigration reform efforts could help Republicans win the Hispanic vote; on the other side are anti-immigration conservatives and Tea Party members who would prefer no action other than enforcement.

Observers expect that Mr. Boehner will act piece-by-piece rather than trying to advance one comprehensive immigration reform bill. He may wait until after Republican primaries occur this spring. “There are a lot of private conversations underway to try to figure out how do we best move on a common-sense, step-by-step basis to address this,” he said. At a recent news conference, he noted, “The only way to make sure immigration reform works this time is to address these complicated issues one step at a time.”

Meanwhile, Thomas Donohue, the president and CEO of the U.S. Chamber of Commerce, said in his “State of American Business 2014” remarks on January 8, 2014, that “the pundits will tell you it’s going to be hard to accomplish much of anything in an election year. We hope to turn that assumption on its ear by turning the upcoming elections into a motivator for change. It’s based on a simple theory—if you can’t make them see the light, then at least make them feel some heat.” Speaking generally on immigration issues, he added, “we’re determined to make 2014 the year that immigration reform is finally enacted. The Chamber will pull out all the stops—through grassroots lobbying, communications, politics, and partnerships with unions, faith organizations, law enforcement and others—to get it done.”

The big question is whether immigration reform legislation can move forward in a midterm election year in which all 435 House seats are up for grabs, along with 33 of the 100 Senate seats, 38 state and territorial governorships, and numerous state and local elections. Given recent hyper-partisan experience in Congress, some say continued gridlock is likely. “I can’t imagine Congress doing much more than nominations and appropriations bills,” said Jim Manley, a former aide to Senate Majority Leader Harry Reid (D-Nev.). However, major legislation has passed in election years, often after primary season. “For many members [of the House], they’d be more comfortable when their primaries are over,” said California Rep. Darrell Issa.

2. Visa Bulletin Shows Advancement in Several Categories

The Department of State’s Visa Bulletin for February 2014 shows advancement in priority dates for several employment-based categories.

The employment-based third preference “Worldwide” and “Other Workers” categories both advanced two months, from April 1, 2012, to June 1, 2012. The China-mainland born employment-based second preference category moved ahead one month, from December 8, 2008, to January 8, 2009. The India second preference stayed put at November 15, 2004, as did Mexico and the Philippines, which both remained Current for the second preference. The employment-based third preference “Other Workers” category moved ahead by two months for every category except India, which remained at September 1, 2003. Other categories remained Current.

3. DOL Releases 2014 Adverse Effect Wage Rates

The Department of Labor has published a notice in the Federal Register announcing new Adverse Effect Wage Rates (AEWRs) in calendar year 2014 for each state, based on the Farm Labor Survey conducted by the U.S. Department of Agriculture. The AEWRs are the minimum hourly wage rates the Department has determined must be offered and paid by employers to H-2A temporary agricultural workers so that the wages of similarly employed U.S. workers will not be adversely affected.

4. DHS, USCIS Personnel Changes Announced

The U.S. Senate confirmed the nomination of Alejandro Mayorkas to be Deputy Secretary of Homeland Security on December 20, 2013, by a vote of 54-41. Mr. Mayorkas has been head of U.S. Citizenship and Immigration Services (USCIS) since 2009.

Meanwhile, the Obama administration nominated Leon Rodriguez to lead USCIS. Since 2011, Mr. Rodriguez has served as the Director of the Office for Civil Rights at the Department of Health and Human Services. From 2010 to 2011, he served as Chief of Staff and Deputy Assistant Attorney General for Civil Rights at the Department of Justice (DOJ). Previously, Mr. Rodriguez was County Attorney for Montgomery County, Maryland, from 2007 to 2010. He was a principal at Ober, Kaler, Grimes & Shriver in Washington, DC, from 2001 to 2007. He served in the U.S. Attorney’s Office for the Western District of Pennsylvania from 1997 to 2001, first as Chief of the White Collar Crimes Section from 1998 to 1999 and then as First Assistant U.S. Attorney until his departure. Before joining the U.S. Attorney’s Office, Mr. Rodriguez was a trial attorney in the DOJ’s Civil Rights Division from 1994 to 1997 and a Senior Assistant District Attorney at the Kings County District Attorney’s Office in New York from 1988 to 1994. He received a B.A. from Brown University and a J.D. from Boston College Law School.

5. OSC Reiterates That Employers May Not Institute a Hiring Preference for U.S. Citizens Unless Required To Do So

In response to a query, Alberto Ruisanchez, Acting Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), reiterated that employers may not institute a hiring preference for U.S. citizens unless required to do so to comply with a law, regulation, executive order, or government contract. Individuals protected from citizenship status discrimination include U.S. citizens, lawful permanent residents, refugees, and asylees.

Mr. Ruisanchez said the OSC encourages employers considering a restriction on hiring based on citizenship status to ensure that it is properly restricting the position. Not to do so is to risk the imposition of sanctions, penalty fines, reporting requirements, and back pay.

Mr. Ruisanchez noted that the OSC cannot give an advisory opinion based on any particular set of facts. The query was from Gretta Rowold, Executive Director of Secure Research Operations for the University of Oklahoma’s Office of Legal Counsel. She told the OSC that the university negotiates sponsored research agreements with non-university parties and periodically is asked to restrict participants to U.S. citizens only, and that the organizations sponsoring the research in some cases are unwilling or unable to provide justification for the requirement other than stating that the organization does sensitive work, or has a U.S. government customer who wouldn’t like it if non-U.S. citizens were involved in their projects. She asked the OSC what exposure the university might have under the law, and what type of justification or documentation is appropriate to protect the university against liability.

6. OSC Clarifies I-9 Verification for Refugees, Asylees

In response to a query, Seema Nanda, Deputy Special Counsel of the Department of Justice’s Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), clarified the application of documentation requirements related to Form I-9 work authorization verification for refugees and asylees. Eileen Scofield of Alston & Byrd asked what steps employers should take when an asylee or refugee worker presents for initial I-9 verification purposes a Form I-766, employment authorization document (EAD), that subsequently expires, considering the fact that asylees and refugees have unrestricted work authorization.

Ms. Nanda noted that when completing the I-9, a worker must select a box in Section 1 indicating his or her status. The selection applicable to “refugees and asylees—alien authorized to work” has a field that requests “expiration date, if applicable.” The I-9 instructions provide that refugees or asylees may write “N/A” in the space provided for the expiration date in Section 1. After employees complete Section 1, they must present documents evidencing identity and employment eligibility for the employer to complete Section 2. USCIS guidance provides that refugee and asylee workers are not required to present an EAD for Section 2 to complete the I-9. They may choose to present other documents, such as a driver’s license (List B) and unrestricted Social Security card (List C), to satisfy the I-9 requirements. The I-9 instructions further provide that reverification of a worker’s employment authorization does not apply to refugees and asylees “unless they chose to present evidence of employment authorization in Section 2 that contains an expiration date and requires reverification, such as Form 1-766, Employment Authorization Document.” Thus, Ms. Nanda said, an employer that reverifies the employment authorization of an asylee or refugee who originally presented an EAD upon the EAD’s expiration is following USCIS guidance. OSC therefore would be “unlikely to find a violation of the anti-discrimination provision unless the employer somehow acted in a discriminatory manner based on national origin or citizenship status,” Ms. Nanda said.

Ms. Scofield also asked about refugee and asylee workers who are unable to present a new unexpired EAD by the date of expiration of their originally presented EAD. Ms. Nanda responded that for reverification, an employee may present unexpired documentation from either List A or List C showing he or she is still authorized to work. Employers cannot require the employee to present a List A document. Thus, she noted that a refugee or asylee who originally presented an EAD could, for example, present an unrestricted Social Security card at reverification. Furthermore, the receipt rule would allow a worker to present a receipt for a lost, stolen, or misplaced document for reverification purposes. To the extent an employer requires an employee to present a specific document, such as an unexpired EAD, for reverification purposes, it may violate the anti-discrimination provision’s prohibition against document abuse, Ms. Nanda warned.

The Department of Labor (DOL) announced on December 20, 2013, that it is postponing action on a decision vacating supplemental prevailing wage determinations issued in light of an interim final H-2B wage rule.

On December 3, 2013, the Board of Alien Labor Certification Appeals (BALCA) issued an en banc decision in Matter ofIsland Holdings LLC (2013-PWD-00002). That decision vacated the supplemental prevailing wage determinations issued in light of the DOL’s interim final H-2B wage rule (78 Fed. Reg. 24047, Apr. 24, 2013). A class action complaint has been filed in the district court in the Eastern District of Pennsylvania, challenging the Island Holdings decision, CATA v. Perez, 13-CV-07213.

The DOL’s Office of Foreign Labor Certifications (OFLC) said that after a full review of the Island Holdings decision and the district court complaint, the DOL has decided to postpone action on the Island Holdings decision pending judicial review. “This action is in the interest of justice, given the confusion and substantial disruption that would be created if the Department implemented the decision and it was subsequently overturned by the district court,” the OFLC noted. Accordingly, all OFLC actions related to the resolution of appeals in the supplemental prevailing wage decisions will be stayed pending the resolution of the district court action.

8. Philippines Requests TPS Designation

The government of the Philippines has asked the Obama administration to designate the Philippines for temporary protected status (TPS) in the wake of Typhoon Yolanda/Haiyan, which killed more than 6,000 people and displaced millions. The request was relayed to the Department of Homeland Security (DHS). Not only would this give an estimated 1 million Filipinos in the United States the opportunity to stay and work, but it would also allow them to send remittances back home. As of the date of publication of this newsletter, the DHS has not acted on the request.

The Supreme Court heard oral argument in Mayorkas v. Cuellar de Osorio on December 10, 2013. The case challenges a Board of Immigration Appeals (BIA) interpretation of the Child Status Protection Act (CSPA) with respect to children aging out before a visa becomes available. The CSPA provides continuing eligibility for immigration benefits to the beneficiaries of certain petitions when the beneficiary has “aged out” by turning 21. U.S. Citizenship and Immigration Services (USCIS) issued related policy guidance just before the Supreme Court argument.

The Supreme Court case, Mayorkas v. de Osorio, questions whether all children of immigrant visa applicants, or only some, who turn 21 while awaiting a visa may retain their original priority date or must wait at the back of a new visa line. The case arose in the context of a family-based green card petition, but the Court’s decision will also affect beneficiaries of employment-based green card petitions.

In Matter of Wang, the relevant BIA case, the Board held that the automatic conversion and priority date retention provisions of the CSPA did not apply to a person who aged out of eligibility for an immigrant visa as the derivative beneficiary of a family-based fourth preference visa petition, and on whose behalf a second preference green card petition was later filed by a different petitioner.

The petitioner urged a broad interpretation of the CSPA. The brief by amici curiae in Wang similarly maintained that the provision amended by the CSPA, § 203(h)(3) of the Immigration and Nationality Act (INA), is ameliorative and inclusive and does not limit its automatic conversion and priority date retention provisions to family-based preference petitions. In contrast, the USCIS urged a narrower interpretation, arguing that established regulatory practice requires that the original priority date will be retained only if the second visa petition is filed by the same petitioner. Thus, USCIS maintained that to effect an “automatic conversion” under the CSPA, the petitioner also must have been the petitioner on the earlier green card petition. According to the USCIS, such an interpretation of the statute avoids open-ended petitions with no timeliness considerations.

The Supreme Court’s decision is expected by late June.

Shortly before the Supreme Court argument in Mayorkas v. Cuellar de Osorio, USCIS issued a policy guidance memorandum on the CSPA. The memo notes that the CSPA addresses certain “age out” consequences in those instances where “aging out” of eligibility for classification as a child is caused by a delay in the adjudication of the petition or application. The CSPA applies widely to petitions for family-based immigrants and also applies to employment-based immigrants, diversity visa immigrants, refugees, and asylees when delays in processing petitions would cause a beneficiary to lose the ability to immigrate as a child due to reaching 21 years of age.

The memo specifically addresses automatic conversion and priority date retention as set forth in INA § 203(h)(3). The memo notes that this provision authorizes certain immigrant visa petitions to “automatically be converted to the appropriate category and…retain the original priority date.” The memo provides guidance for assigning priority dates in those instances where a petitioner requests that the priority date from a separate, previously filed petition be applied to a later filed family-based second-preference “B” petition (F-2B) or seeks adjustment of status in the F-2B category, based upon an originally filed family-based second-preference “A” petition (F-2A) under the CSPA.

U.S. Citizenship and Immigration Services announced that on November 4, 2013, the U.S. District Court for the Western District of Washington granted final approval of the revised ABT settlement agreement, closing class action litigation that began in December 2011, in a case called B.H. v. United States Citizenship and Immigration Services, No. CV11-2108-RAJ (W.D. Wash.). The settlement agreement provides that certain individuals who intend to file, or have already filed, an asylum application may have their eligibility for employment authorization determined using new procedures.

These changes generally relate to eligibility for an Employment Authorization Document (EAD) for asylum applicants, and to calculation of the 180-day “Asylum EAD Clock” for ABT class members.

USCIS explained that the 180-day Asylum EAD Clock measures the time period during which an asylum application has been pending with the USCIS asylum office and/or the Executive Office for Immigration Review. USCIS service centers adjudicate the Form I-765, Application for Employment Authorization, and calculate the 180-day Asylum EAD Clock to determine eligibility for employment authorization. Asylum applicants who applied for asylum on or after January 4, 1995, must wait 150 days before they can file an I-765 if the application remains pending. An asylum applicant cannot receive an EAD until his or her asylum application has been pending for at least 180 days. This 180-day period does not include any delays that applicants request or cause while their applications are pending with an asylum office or immigration court, USCIS explained.

The agreement was revised in September 2013 to clarify two points:

Following the remand of an asylum case to an immigration judge, for employment eligibility purposes the asylum applicant will be credited with time going forward, excluding delays requested or caused by the applicant.

Remand Claim relief would be implemented under the six-month time frame provided in most other provisions of the agreement. Due to the government shutdown, the six-month time frame was extended by several weeks and implementation began by December 3, 2013.

11. USCIS Releases New E-Verify MOUs Tied to Access Method

On December 8, 2013, U.S. Citizenship and Immigration Services (USCIS) released revised Memoranda of Understanding (MOUs) for E-Verify browser users and new MOUs for users accessing E-Verify through Web services.

USCIS said that current E-Verify users are not required to execute a new MOU but are bound by any enhancements to the E-Verify program, including the new or revised MOU that applies to their access method. Current users should become familiar with the new or revised MOU that applies to their access method. The effective date of the MOU for existing users is January 8, 2014.

Employers who join the E-Verify program on or after December 8, 2013, will execute a new or revised MOU (Revision Date 06/01/2013) during enrollment. E-Verify revised and added new MOUs in response to feedback and to update the MOUs with policy and process changes. The new and revised MOUs include several updated provisions, such as enhanced privacy protections and instructions for reporting privacy and security breaches. The new versions are also intended to apply the Federal Government’s “plain language” principles to make them easier to understand.

U.S. Citizenship and Immigration Services (USCIS) has revised the posters that employers must display in their places of business. USCIS said the posters now require less ink to print, in response to requests on “E-Verify Listens,” USCIS’s crowdsourced feedback site. The previous versions are still acceptable.

13. U.S. Embassy London Hosts Visa Webchat

The U.S. Embassy in London conducted a webchat on November 26, 2013. Highlights of the webchat include:

U.S. government policy is under review regarding “criminal cautions” in the United Kingdom. Applicants having a caution may experience lengthy delays during the application process. These delays will affect applicants with a caution even if they may have received a visa in the past. The U.S. Embassy London recommends applying as soon as possible and not making final travel plans until receiving a visa.

The embassy noted that the presumption of innocence has little place in the visa application process. According to the embassy, if one applies for a visa during a pending prosecution, “you should be aware that it may not be possible to adjudicate your visa application until the disposition of your criminal case is known.” See 9 FAM 40.21(a) N3.3.

Waiver applications take six months to process even if the applicant has received a previous waiver. Frequent travelers to the United States may choose to apply more than six months before the expiration date of their current visa so that the next visa may be ready to be issued without a gap. A current visa with a valid waiver will not be canceled during the interview before the expiration date.

Immigrant visas are issued with a validity period that expires six months from the date of the medical exam, rather than six months from the date of the immigrant visa interview.

14. Government Agency Links

Follow these links to access current processing times of the USCIS Service Centers and the Department of Labor, or the Department of State’s latest Visa Bulletin with the most recent cut-off dates for visa numbers:

15. Klasko News

News and Noteworthy

H. Ronald Klasko (Ron), William A. Stock (Bill) and Elise A. Fialkowski have been named among the world’s leading Corporate Immigration Lawyers by clients and peers in Who’s Who Legal. The International Who’s Who of Corporate Immigration Lawyers 2014 and The International Who’s Who of Business Lawyers 2015 will be published in the Who’s Who Legal Magazine. We congratulate Ron, Bill and Elise on once again being selected and honored as the world’s leading Corporate Immigration Lawyers.

Save the Date: 2014 Annual Spring Seminar is Tuesday, April 29!

Mark your calendars for Klasko Immigration Law Partners’ annual Spring Seminar to be held on Tuesday, April 29, 2014 from 9:30 am – 1:00 pm at The Union League of Philadelphia. More information forthcoming.

Upcoming Speaking Engagements

Ron and Bill will be speaking at the AILA South Florida Chapter 35th Annual Immigration Law Update in Miami, FL from February 6-7, 2014.

Ron will be a panelist in the plenary session “Overview of Recent Developments in Employment Based Visas” where developments in immigrant visa processing, trends in adjudications, USCIS and consular processing and case law, and the latest in NIV and IV classifications will be discussed.

Ron, along with Bill as a panel member, will moderate “The Road to Residence: Finding the Path of Least Resistance” a session diagnosing green card options based on current categories and quotas.

Bill will also present on the session “New Teeth: Employer Sanctions and E-Verify” on employer sanctions and E-Verify compliance for employers.

Bill will be at Pennsylvania State University on February 12 and will discuss H-1B visas, H-1B quota, options for dealing with H-1B quota, quota-exempt employment, strategies to enhance chances of getting H-1B, other visa options, permanent residence status, among other topics.

Recent Speaking Engagements

Ron and Bill attended and spoke at the American Immigration Lawyers Association 2014 Midyear/Winter Conference in the Cayman Islands held on January 24, 2014.

Ron served as discussion leader for “Advanced EB-5 Issues – Direct EB-5 Investors.” As the EB-5 visa category has become increasingly popular, USCIS has issued memoranda and guidance that have resolved many adjudication issues but that simultaneously have raised many new challenges. This panel explores the latest complex issues facing direct investors including acquisition of business – stock vs. assets, issues in pooled direct EB-5 investments, issues in moving from E-2 to EB-5, proving “net New Jobs” among other issues. For the latest in EB-5 information, visit our EB-5 Resource Center at www.eb5immigration.com.

Bill served as a faculty member on “Employment Based EB-1A and National Interest Waivers (NIW) for Extraordinary Business People & Investors.” While many are familiar with the use of the EB-1A and National Interest Waiver categories for scientists and performing artists, the categories can also be useful for entrepreneurs, investors and other business people whose accomplishments many not fit the regulatory criteria. This panel explores how creative use of “other comparable evidence” under the regulations can make these categories friendlier to accomplished executives and entrepreneurs.

Recent Publications

“Learn to Be a Family Lawyer With ‘Immigration Savvy’: Part 2” an article authored by Anu Nair, was published in the January 15, 2014 edition of The Legal Intelligencer. In this article, Anu discusses the immigration hurdles faced by U.S. Citizens who adopt children overseas and those who use Assisted Reproductive Technology to conceive and deliver a child abroad. For a copy of the article contact Anu at anair@klaskolaw.com.

Bill’s latest article “Learn to Be a Family Lawyer With ‘Immigration Savvy’” was published in The Legal Intelligencer on December 18, 2013. In this article, geared toward the Philadelphia legal community, Bill explained the important ways in which immigration law and family law can intersect when dealing with divorce and custody matters, as well as with issues of post-divorce financial support when one spouse sponsored the other for a green card. Email Bill at wstock@klaskolaw.com for a copy of this article.

“The Infosys Settlement: What Was and Could Have Been” an article authored by Walter S. Gindin, was published in the The Legal Intelligencer on November 20, 2013. In this article, Walter discusses the background and potential implications of the October 2013 settlement between the Department of Justice and Infosys Ltd., pursuant to which Infosys agreed to pay $34 million in civil fines to settle the civil immigration claims against it for alleged violations of visa practices, terminate any criminal charges, and end the Government’s fraud investigation. For more on the settlement or to request a copy of this article, write to Walter at wgindin@klaskolaw.com.